a case that would establish important precedents in the area of Aboriginal law was winding its way through the maze of trials and appeals. The “Baker Lake case” had been launched in the Federal Court of Canada, Trial Division, in 1979. The Plaintiffs were the Hamlet of Baker Lake, the Baker Lake Hunters and Trappers Association, the Inuit Tapirisat of Canada, and individual Inuit living, hunting and fishing in the Baker Lake area of the Northwest Territories. The Defendants were the Attorney General of Canada and the Minister of Indian Affairs and Northern Development in Right of Her Majesty the Queen, and a consortium of mining companies. The plaintiffs asked the court for an order restraining the government from issuing land use and prospecting permits, granting mining leases and recording mining claims which would allow mining activities in the Baker Lake area, and for an order restraining the defendant mining companies from carrying on such activities there. They also asked for a declaration that the lands comprising the Baker Lake area are subject to the Aboriginal right and title of the Inuit residing in or near that area, to hunt and fish in these territories.
In their initial pleadings, the government defendants admitted that the Plaintiffs and their predecessors had occupied and used the Baker Lake area since time immemorial. They withdrew this admission during the trial. The mining companies denied that Aboriginal title had existed either before or after Europeans arrived in the region. Both the government and the mining companies argued that if Aboriginal title ever existed it was entirely extinguished by the Royal Charter of 1670 that granted the territory—then known as “Rupert’s Land”—to Canada, or by subsequent legislation.
Judge Mahoney found the evidence of the Inuit elders about their ways of life and religious beliefs, and that of Superintendent Dent of the Royal Canadian Mounted Police “complementary,” in so far as both described daily life within small hunting groups.6 The principal conclusion the judge took from this evidence was that, prior to moving into settlements in the early 1950s, the Baker Lake Inuit were, in his words, “nomads.” In his imagination, this meant they had no strong ties to specific, delineated tracts of land, or “civilized” concepts of private property.
Expert witnesses Dr. Elmer Harp Jr., Professor Emeritus of Archaeology at Dartmouth College, Hanover, New Hampshire, and Dr. J. V. Wright, head of the Scientific division of the Archaeological Survey of Canada, particularly impressed Justice Mahoney with their detailed and recognizably “scientific” evidence, and with the fact that they agreed with each other, as Mahoney did with them, on the fundamental issue of classification within the familiar social evolutionary framework: the Inuit were nomadic hunters, not settled horticulturists and therefore were low on the scale of evolutionary human development.7 Justice Mahoney concluded that “those encampments of two or three families were the units described by the Inuit witnesses, encountered by Inspector Dent in the mid-1950s, by Norton in 1762, and discovered to have existed in the Thule period.”8
Justice Mahoney was less impressed by the expert evidence of Dr. Milton Freeman, whom he described as “a social anthropologist, which is to say that he is neither an archaeologist nor a linguist; he studies the social behaviour of people in the context of their society or culture.”9 On the stand, Dr. Freeman elaborated on the nature of “band level societies,” a term he had not used in his affidavit. The Crown and the mining companies objected to his testimony following his statement that the small hunting units described by both Inuit elders and local non-Inuit observers are “units of a much larger coherent organized society and very much interacting, interdependent, mutually dependent on interaction with other units within the society…this all constitutes a very coherent society which anthropologists have no problem in identifying….”10 Freeman tried to explain that, while the Baker Lake Inuit may have hunted and camped in small family groupings during particular seasons, at other times they joined together with similar bands in large gatherings for the purposes of trade and exchange, ceremony, ritual, resolution of disputes, organization of government, and documentation of significant historical developments through oral history. The Baker Lake Inuit live sometimes in small bands; and at other times, in larger groupings. Freeman challenged simplistic classifications that rule out those concrete aspects of Indigenous life which do not fit neatly into abstract European theoretical categories.
Mahoney dismissed Freeman’s evidence on a technical point: Rule 482 of the Rules of Evidence requires that an expert witness’ testimony be laid out in an affidavit first, in order for the opposing lawyers to have adequate opportunity to review the expert opinion report and prepare for cross examination.11 Freeman had stated in his affidavit that he would discuss the relationship between the Inuit and their environment. When Freeman described Inuit culture, Mahoney ruled that “this was not what was promised” in the affidavit, apparently understanding “environment” to include only the physical or natural landscape, but excluding human social, political and economic organization. Dr. Freeman was engaging in “persuasive arguments” on these issues, unbecoming to a scientist, the judge said.
Mahoney was similarly unimpressed by Dr. Peter Usher’s evidence. Usher holds a Ph.D. in Geography. Quoting the Shorter Oxford Dictionary definition of geography as the “science that describes the earth’s surface, its form and physical features, its natural and political divisions, its climates, productions etc.,” Mahoney concluded that Dr. Usher’s evidence didn’t fall within his field of expertise. Mahoney wrote: “Dr. Usher’s evidence had more the ring of a convinced advocate than a dispassionate professional…. Neither his formal training as a geographer nor his experience in and with the Arctic and Inuit qualify him to form opinions on political, sociological, behavioural, psychological and nutritional matters admissible as expert evidence in a court of law.”12
More experts testified. Wildlife biologists, ethnologists, and experts on animal behaviour were called to the stand by both parties. Those called by the plaintiffs supported the Inuit hunters’ claims that the caribou herds were declining and being driven away by mining activities. Those called by the government and mining companies discounted the Inuits’ evidence, saying their knowledge reflected only their simple lived experiences and was therefore particular and limited, and should not be taken as seriously as the theories of “scientific experts.” These non-Inuit experts claimed to base their knowledge on scientific surveys that reached far beyond the immediate area of Baker Lake, and produced results that could be generalized and tested against universal, law-like theories. They claimed the causes of the caribou herds’ decline were multiple and complex.
Justice Mahoney ruled that “on the balance of probabilities…activities associated with mining exploration are not a significant factor in the caribou population decline.”13 In summary, Mahoney, like judges before and after him, preferred to rely on his own “common sense” interpretation of Native testimony, supported by carefully chosen “factual” confirmation by “ordinary white people,” and professionals selectively labelled “scientists” by a judge. Testimony by well educated and well respected—by the criteria of western scholarship—scholars of “softer sciences” like anthropology or social geography, was rejected.
Assessed from another perspective, it could be argued that evidence that supported the representation of Baker Lake Inuit societies as “high enough” on the scale of social development set by the Re: Southern Rhodesia test to have had “property usages and conceptions that could be continued under the British regime,”14 was rejected in favour of images of small bands of nomads lacking political or social cohesion whom the same judgment had described as “so low on the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilized society.”15 Expert witnesses whose testimony supported the former were dismissed as unprofessional “advocates” of Aboriginal political causes, while those whose interpretation supported the latter where respected as “scholarly experts.” This evaluation was made by the court, and not by the standards of their respective professions.
On the legal source of Inuit Aboriginal title, Justice Mahoney set out a four-point test which he said the plaintiffs must
